December 28, 2010

D.C. Circuit Warns Defendants: Mind Your Language

An appeals court in Washington today offered up guidance to defendants who are displeased with a judge's decision: Watch what you say.

Drawing a line between an insult and obstruction of justice, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit today refused to void a man’s contempt conviction for blurting out an expletive in an apparent momentary expression of displeasure with the court.

The appeals said the outburst—the defendant uttered “F--k, y’all” in open court—is enough to sustain a contempt conviction. The comment was directed at Judge Henry Kennedy Jr. of Washington’s federal trial court.

Much of the contempt case is under seal, and the lawyers involved in the case have declined to provide an explanation. The appellate court opinion today did not identify the name of the defendant.

The man’s appellate lawyer, Tony Axam Jr. of the federal public defender’s office, argued the expletive alone was not enough to justify a contempt conviction. The defendant’s outburst, Axam argued at a recent hearing, did not interfere with the administration of justice.

Axam said the remark came at the conclusion of a hearing at which Kennedy sentenced the defendant to three years of prison for violating his supervised release in a cocaine distribution case. His arrest and conviction for second-degree murder—the man was sentenced last year to 26 years in prison—violated the terms of his release in the drug case.

During the revocation hearing, the man, according to the appeals court, “repeatedly attempted to interrupt” the judge. After Kennedy imposed the three-year term, the man offered up his two-word profane summation of his thought on what just happened.

The appellate panel—judges Karen LeCraft Henderson, Douglas Ginsburg and Brett Kavanaugh—today rejected the argument that obstruction of justice cannot occur after a court proceeding has concluded.

“Misbehavior in the courtroom, at any time, carries the potential to obstruct justice,” Henderson wrote in the six-page opinion.

The appeals court did cut the man a slight break, for what it’s worth.

On top of the three-year term, Kennedy imposed an additional year for the criminal contempt conviction. The appeals court today reduced that sentence to six months, saying Kennedy did not have the power to sentence the man to more than six months without a jury trial.

Comments

Many years ago here in England I heard a man refused bail on 31 December snarl at the magistrate as he was taken down "Up your f****** ring, squire!" to which the magistrate returned "and a happy New Year to you too" - which seems the best way to react.